In a recent decision of the Fair Work Commission (K v Coal & Allied Mining Services Pty Limited T/A Mount Thorley Operations/Warkworth Mining [2016] FWC 6018 (Mount Thorley decision)), Commissioner Saunders said,
“It is only in exceptional circumstances that an employer has a right to extend any supervision over the private activities of employees.”
Thankfully, most employers will never have to concern themselves with disciplining employees for their out of hours conduct, but on occasion an employee’s conduct after business hours and away from work can be so damaging or dangerous that an employer will have little option but to get involved.
In the Mount Thorley decision, the employer became aware of the out of hours conduct of a group of employees who, whilst driving home from work, manoeuvred their cars on a public highway in such a manner so as to prevent one of their colleagues from being able to turn off the highway in the direction of his home. The decision concerned one particular employee whose employment was terminated as a result of his involvement in the dangerous driving incident and who subsequently claimed that he was unfairly dismissed.
In reaching a finding as to whether the employee’s dismissal was harsh, unjust or unreasonable Commissioner Saunders considered whether the employee’s out of hours conduct had a sufficiently strong connection to the employment relationship such that it could form a valid reason for the employee’s dismissal.
In deciding if a sufficient connection to the employment relationship exists, a court will consider:
In considering the above, Commissioner Saunders found that the employee’s conduct in driving in a dangerous manner so as to “box in” a colleague on a public highway did have a sufficient connection to the employment relationship and therefore, the employer was within its rights to rely on that out of hours conduct as a reason for dismissing the employee.
In particular, Commissioner Saunders said that had an injury occurred as result of the Applicant’s conduct, that injury would have amounted to a “journey claim” under workers compensation legislation because the employees were on their way home from work at the time. Accordingly, the employer would have been liable for such a journey claim and therefore, the Applicant’s conduct posed a risk to the employer’s interests.
Furthermore, Commission Saunders said that because the incident occurred on a public road in reasonable proximity to the employer’s mine site and there was a real risk of injury to the employees or other members of the public, it follows that the incident had the potential to adversely affect the employer’s reputation.
This case is a good example of why employers should treat inappropriate out of hours conduct seriously. Not everything that happens in an employee’s private life is an employer’s concern, but actions and circumstances with a reasonable nexus to the workplace and / or involving work colleagues should be treated seriously by the employer every time.
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